Reflections on 20 years of reform: former Constitutional Court chief Jimly Asshiddiqie

May 14, 2018

Photo by ICMI.

Where were you and can you describe how you felt when you first heard Soeharto had resigned?
I was an assistant to Vice President BJ Habibie at the time. On the night of 20 May 1998, I was by the vice president’s side as several ministers who had just resigned from Soeharto’s cabinet delivered their reports to him. On hearing their views, Habibie asked his adjutant to schedule a meeting with President Soeharto. But Soeharto’s adjutant passed the phone to Cabinet Secretary Saadillah Mursyid, who was with the president at his residence at the time. Mursyid spoke directly to Habibie and conveyed a message from Soeharto, saying that there was no need to meet with the president that evening, and that the president would deliver his resignation at Merdeka Palace the following day. On 21 May, Soeharto resigned and Habibie replaced him. After announcing his new cabinet, Habibie also established several working groups, including the National Committee for Reform. Future President Susilo Bambang Yudhoyono was assigned to chair the political reform group, while I was tasked with leading the law reform group. This involved chairing an expert panel on constitutional reform, the result of which was the first document used by political parties to initiate debate on constitutional amendments in 1998 and 1999.

What has been the most significant reform of the post-Soeharto era?
The most significant reform has been the four amendments to the Constitution made between 1999 and 2002. Through this process, Indonesia adopted a modern, fully democratic system of governance with protections for human rights. The presidential system was strengthened by limiting the number of presidential terms and providing for a direct presidential election, conducted by an independent General Elections Commission (KPU). The reforms also introduced a system of checks and balances between the branches of power, and power shifted from the Consultative People’s Assembly (MPR) as the highest authority to the Constitution and the Pancasila. Other important reforms included the creation of a new institution to safeguard the democratic constitutional system, the Constitutional Court, and efforts to improve integrity in public office, for example by establishing the Judicial Commission to improve oversight of the judiciary. Regional autonomy and strengthened cultural rights, for example the use of local languages and improved recognition of indigenous communities at the local level, have also been important.

What has been the biggest disappointment of the post-Soeharto era?
The transformation to full democracy has been frustratingly slow because institutional change has not been supported by the development of a strong democratic spirit and the rule of law. This is a problem in the major institutions of democracy as well as the supporting political infrastructure, such as political parties. Only political parties led by a dominant oligarch have been able to avoid internal conflict. We need long term, visionary leadership to improve the quality and integrity of our democracy. Unfortunately, almost all of today’s political operators are trapped in a “hit and run” transactional system driven by political and free market objectives.

Do you think that the reform process has ended? If so, when?
In a formal sense, the process of reform ended with the election of the first directly elected president, Yudhoyono, in 2004. Rules and institutions changed fundamentally between 1998 and 2003 under the first three post-Soeharto presidents, BJ Habibie (1998-1999), Abdurrahman Wahid (1999-2001) and Megawati Soekarnoputri (2001-2004), such that the reform process had concluded before Yudhoyono came into office. In a substantial sense, however, reform is a never-ending process, involving ongoing adjustments and improvements to meet new challenges. Serious work is needed to consolidate these reforms, and that is what has been lacking. Unfortunately, the leading actors of the post-reform period seem trapped by the absence of sustainable political culture of regeneration (budaya estafet) and the lack of long term vision and transformational spirit.

What do you think Indonesia still needs to do to further consolidate democracy?
The institutional set-up of government struggles to cope with the new challenges that Indonesia faces. We need to strengthen the rule of law and work on further developing democratic ethics. This is critical to protect personal freedoms, and promote equality and social justice for all, while continuing to support economic growth for welfare of all the people of Indonesia. We cannot continue to rely on a law and order approach alone to address Indonesia’s challenges. Almost all our prisons are in poor condition and face serious overcapacity problems. In addition to ongoing reforms to the justice sector, Indonesia needs to improve ethics in public institutions to reduce the burden on the legal system.

Is Indonesia a more attractive place for foreign investment than it was under Soeharto?
Political stability under Soeharto attracted much foreign investment, without doubt. Since the fall of Soeharto and the freedoms that came with it, we have developed into a noisy, less predictable democracy. The market is more open to foreign investors but for many investors there remain questions over our political stability and legal certainty. But where there is freedom and democracy, there is more room for creativity. We have been able to attract more foreign investors than under Soeharto. Indonesia is also blessed with natural resources, and with the fourth largest population in the world, we could become the fourth largest market in the world, too.

There is emerging concern about democratic regression in Indonesia. Do you believe there is a risk of Indonesia returning to a more authoritarian style of rule?
Democratic regression is a problem around the world, there is growing distrust of democracy in many countries. This is partly because of the economic success of non-democratic countries like China; the rise of identity politics based on religion or ethnicity; outrage and animosity on social media, and its disruptive impacts; and growing economic inequality. These factors are all present in Indonesia. In the long run, however, I see no reason to be pessimistic. I believe the system of constitutional democracy practised in Indonesia can withstand these challenges.

Do you think there is a chance that the military will ever come out of the barracks again?
I don’t think the military will try to or could take over government again, as occurred in Egypt, for example. The Indonesian military is managed by a new generation of leaders, while the old generation have taken up positions in business, civil society, or political parties. Many strong figures from the old generation have also found positions within government, such as formal or informal advisory positions, and, in some cases, even as coordinating ministers. They no longer need to rely on military force to win influence.

Does rising Islamic conservatism pose a threat to Indonesian democracy?
To a certain degree, yes. Rising Islamic conservativism in Indonesia is part of a global trend that has been fuelled by growing inequality and the rise of social media, which has led to a bitter and divided public discourse. This problem has been compounded by the fact that politicians seem more concerned with consolidating power rather than governing, and have exploited old divisions between “nationalist” and “Islamist” voters. Islamic conservatism will therefore likely be used for political mobilisation in the coming elections. But Indonesia has many years of experience in managing a diverse society. In the long run, I believe the political dynamics we are seeing now will encourage Indonesians to support a Pancasila-based constitutional democracy.